By Dr Phillipa England
Griffith Law School

In 2018, the former ABC site at Toowong was the subject of a planning appeal to the Court of Appeal. In an unusual turn of events for Queensland, an application to build 555 residential units in three towers ranging from 24-27 storeys was rejected. The decision was made with respect to repealed legislation — the Sustainable Planning Act, 2009 (Qld) (SPA) — and there is little doubt a high rise development including a residential component will soon be approved for the site whether or not on the same scale as proposed in this application. So, does the Court of Appeal’s decision have any lasting relevance for planning law in Queensland? In at least one subsequent case, Parmac Investments v Brisbane City Council [2018] QPEC 32, the PEC was careful to distinguish Bell. The respondent local government, Brisbane City Council had tried to argue the decision in Bell, has reduced the Court’s discretion to approve a development application in circumstances where conflict is found with a relevant planning instrument. The judge in Parmac did not agree: “the ratio decidendi of the Court of Appeal decision in Bell is not binding.” (para[22]). This short comment argues that, at least in one respect, the decision in Bell is and should remain binding on decision makers now operating under the Planning Act, 2016.

In Bell v BCC [2017] QPEC 26, Brisbane City Council (BCC) had approved a residential development involving 555 units in three towers ranging from 24-27 storeys in height – on the former ABC Site on the riverside at Toowong. The site was located in a major Centre Zone, covered by a heritage overlay and designated a landmark site and a catalyst site. Bell brought a submitter appeal against Council’s development approval arguing there were a number of conflicts with the planning scheme particularly relating to the height, bulk, scale and proposed use of the site. The appellant alleged there were inconsistencies with the relevant performance objectives and overall objectives of the Toowong-Auchenflower Neighbourhood Plan (the TANP) which anticipated development would be:

[O]f a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and ….

(b) is aligned to community expectations about the number of storeys to be built; (TANP Code, Performance Outcome 1(b))

Bell argued the community’s reasonable expectations were that building heights up to a maximum of 15 storeys would be allowed as this was the relevant acceptable solution nominated in the Code. However, in the Planning and Environment Court (PEC), Judge Rackemann decided community expectations could be partly but not entirely set by reference to that acceptable solution (at para [70]). He believed it would be reasonable to expect development up to the number of storeys specified and “possibly something greater” on a performance based assessment. Existing and approved development in the area and the “landmark” character of the site might also shape community expectations (at para[72]). Nevertheless, he accepted that, even taking these considerations into account, the height proposed in this case did not align to community expectations (at para [76]). But that was not the end of the matter.

Judge Rackemann next considered the following statement made in the overall outcomes of the Code:

Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development. (TANP Code, Overall Outcome (3)(h)) (author’s emphasis)

On his review of the evidence, Judge Rackemann found there was a need for the development which made it consistent with this aspect of the Code. Moreover, to the extent there was any conflict with the planning scheme there were sufficient grounds in the public interest to allow the development to go ahead. Accordingly, Judge Rackemann affirmed Council’s decision to approve the development. However, that was still not the end of the matter because the PEC decision was subsequently appealed to the Queensland Court of Appeal.

On appeal, the Court of Appeal unanimously overturned the PEC decision. The two reasons for their decision were:

Lack of demonstrated community and economic need: The Court of Appeal ruled that, when Judge Rackemann applied Overall outcome (3)(h) of the TANP Code he failed to consider whether the need was specifically for the development as proposed — that is, 24 and 27 storeys not 15 storeys. Although there was a need for development generally, there was no demonstration of need for this particular development:

For the purposes of discussion, let it be assumed that there is a community need, and an economic need, for a high quality residential development which provides public spaces of the kind and to the extent which the judge described; but let it also be assumed that these needs could be satisfied by the provision of, say, 300 units within three towers, none of which would exceed 15 storeys. In that case, the second respondent’s proposed development might be described as satisfying a need. But this development would more than do so. The question is not whether the development would satisfy community and economic needs; it is whether there is a need for this development, or put another way, whether it is necessary to develop their site by buildings of this height. [43]

His Honour did not consider whether a development had to be of this height to satisfy community and economic needs. [45]

[H]is findings provided no basis for a conclusion that upon the proper interpretation of this provision, there was a demonstrated community need and economic need for this development. [49]

Insufficient grounds to make a decision in conflict with the planning scheme: In Queensland, under the now repealed SPA, assessment managers, including the courts on appeal, were entitled to make approve development in conflict with a planning scheme if and only if there were “sufficient grounds”. A significant body of jurisprudence evolved with respect to the interpretation of that requirement. In Bell, the Court of Appeal decided the PEC judge had incorrectly applied that test by substituting his own views of what constituted sufficient grounds “in the public interest” instead of relying on the planning scheme to define those grounds. This reasoning is somewhat tautological as the sufficient grounds test is supposed to be applied to justify a conflict with a planning scheme not compliance with it!

The Planning Act, 2016 repealed the SPA, including the sufficient grounds test. This is the reason why the Judge in Parmac concluded the ratio of Bell’s case was not binding at least in that case. But, as the analysis above shows, a failure to properly apply the sufficient grounds test was only one aspect of the decision in Bell’s case. The Planning Act, 2016, remains performance based which means decision-makers will still at times need to ask themselves whether, for instance, a proposed development will comply with such nebulous overall outcomes as satisfying “community and economic needs”. The Court of Appeal has given very clear instruction that, in the interpretation of planning scheme clauses such as these (and they are not uncommon in Queensland planning schemes), decision-makers must give consideration to the specific details of the application and ensure that any significant deviations from acceptable or performance outcomes are necessary, essential or at least integral to meeting the relevant outcome and are not just an add on at the whim of a developer who believes the application will be approved on its overall merit. This is a significant ruling for all decision-makers called upon to assess development applications against (often not very specific) code outcomes: development applications must be assessed with respect to all their individual elements – especially if those individual elements deviate greatly from acceptable outcomes – and not just on the basis of their overall virtue. This aspect of the decision in Bell remains current and binding on all decision-makers now operating under the Planning Act, 2016.

As a final observation, it is pertinent to note the decision in Bell is a win for the community: even big city developers must show how their proposals comply with planning schemes in some degree of detail and are something more than just a great idea (in their view)!